Hello
again everyone. Last month I told you to expect a "Facts" Section
this month that would include both October and November's Board of Commissioners
actions and decisions.

I must
apologize for not being able to provide that information. I write these
"Reports" at home, on my own time. When I sat down on December
22 to write this months "Report," I realized I did not have
all the necessary information for either month.

The
Board of Commissioners Office has been in a bit of disarray of late. Our
staff has been subjected to significant stress in recent weeks, above
and beyond the "normal," daily stress. There are two major reasons for
this situation.

The
County's Chief Operating Officer resigned as of December 6th, and your
Board of Commissioners have been involved in an internal disagreement
over how we should respond to that resignation. I detailed this brewing
problem in last months Commentary. The COO disagreement
eventually spilled over into how the Boards Office and staff will operate
in the future, leading to frayed nerves and confusion.

As of
this moment, I'm not sure if I'll even be able to continue to offer the
detailed update information to all of you in the future due to some of
the changes being implemented by the Board majority.

As a
result, my Commentary this month will actually cover two
issues instead of one. The first issue will offer more information on
what is happening in the Boards Office and how it is likely to affect
you in the future and the second issue will deal with a very important
United States Supreme Court decision last June that holds out hope for
the future of federal timber revenues for Josephine County.

However,
the new audio record of the regular meetings of the Board of Commissioners
are now available on line at: www.co.josephine.or.us

You'll
be able to hear what is actually said and decided in these meetings, as
long as the Board majority allows it to continue. I hope you take the
time to listen. It may not be "high theater" but it is your future being
discussed, so I think it's worth some of your time. Give it try at least
once and let me know what you think.

Commentary

The
Commissioner's Office

Last
month I told you about the two options being discussed regarding how Josephine
County could respond to the resignation of our COO. My idea would have
saved up to $150,000 per year by utilizing the current Commissioner Liaison
system to temporarily replace the COO position until the County's financial
situation becomes clearer. It was rejected by the Board majority.

Here
is what Commissioners Toler and Ellis have decided to do instead:

1)
The County will now have a Chief Administrative Officer
instead of a Chief Operating Officer. In the case of this position, that
one word change in the title carries long term implications for all of
us.
Salary negotiations will start at $85,000 per year, plus benefits and
will cap-out at whatever salary the Board majority decides to offer.
This decision is also already taking on the very characteristics I warned
about last month. The CAO position is clearly being created to pave the
way for a County Manager form of Government, which Commissioners Toler
and Ellis are "On Record" as being committed to, without apparent concern
for the will of the people, as expressed in the 2002 election when that
very idea was defeated at the ballot box, by a 2-to-1 margin.

2)
The Chief Financial Officer will now report to the CAO instead of to the
Board of Commissioners. See last months Commentary for why I think this
is such a bad idea.

3)
The staff of the Board of Commissioners will no longer report to the Board.
They will now report to the CAO. This is new. This represents a shift of new duties to the CAO position
that have never been delegated before. I believe this decision further
violates the County Charter.

4)
The Board majority is also considering hiring an interim CAO until an
permanent person is found. This would cause extra expense and will likely create more confusion
than it will resolve.

5)
The Board majority has reversed a very important spending restraint implemented
in 2005. On Friday, December 21st, the Board majority gave $25,000 signing
authority (per contract) to all management employees, on their signature
alone, to obligate the County to any purchase contract. There is no limit
on the number of contracts they can sign. Some thirty plus employees can
now sign where only two had that Board delegated authority before. The
Board will now only be briefed on what contracts are signed once per month,
by the CFO, after the fact.In 2005, after the spending restraint had been implemented, only Elected
Officials and four Department heads could sign for those amounts. In 2006,
prior to Commissioner Toler's term began, the Board tightened that restriction
to just two non-elected positions, the COO and the CFO.

These
are very troubling events, from any fiscally conservative point
of view. At a time when Josephine County government faces what could amount
to practical insolvency next year, the Board majority has decided to liberalize
the county's spending habits and eliminate the very controls we had
enacted a few years earlier that have helped us save five million dollars
in just two years.

These
decisions, taken one at a time, are bad enough, but taken as a collective
package, they are a prelude to disaster. For all practical matters,
the Board majority has abandoned the very concept of fiscal restraint.

I have
used the term "Board majority" several times in the paragraphs
above, so let me explain exactly what I mean by that term.

Commissioner
Toler brought a unique approach to county government that is not concerned
with building consensus or the consent of the entire Board on important
decisions. As I've already told you, he is "On Record" as saying he is
not concerned with what the vast majority of voters want. He said, after
last years May Levy ballot defeat, that all he needed was fifty percent,
plus one vote, to get what he wants.

Accordingly,
there is no longer any effort in Board meetings to find some type of common
ground on which each Commissioner has some part of what they believe is
an important point being included in final decisions. Riddle, Ellis and
I did not always agree, but the decisions where one of us was frozen out
entirely were a rare exception. On this Board, with Toler replacing Riddle,
it has become the rule. When it comes to spending decisions, I seem to
be in constant dissent with the final vote to spend more.

Commissioner
Toler takes exception to my use of the term "Board majority", saying there
is no such thing, only the "Board". It would appear the only reason he
could object to my separating myself from the poor fiscal decisions he
and Commissioner Ellis are making is that he hopes all of you to think
all three of your Commissioners have gone along with those poor decisions.
I want to make sure everyone in Josephine County know who actually made
these terrible fiscal decisions, and who opposed them.

Here's
why I'm so worried about this resurgence of uncontrolled County spending:

1) Congress
adjourned for the Christmas recess without reauthorizing the Safety-Net
funding. According to Congressman Peter DeFazio and Senator Ron Wyden,
the subject of Safety-Net funding will not be seriously discussed again
until March or April 2008.

2) There
will be only one more emergency spending bill next Spring where a one
year extension of our funding might be added. Other options for a four
year extension will be few and far between because there are not enough
"offsets" in other Federal spending to pay for the full cost of the currently
proposed versions of the Safety-Net extension.

3) The
President considers this spending to be discretionary to the Federal budget
and has vowed to veto any spending that requires new money. Our funding
is considered "pork" to those who do not understand the failed obligation
of the federal government to harvest timber and share the revenues
from those harvest with county governments.

4) Accordingly,
prospects for continued Safety-Net revenue this year look even worse then
last year.

5) It
appears right now that both Commissioners Toler and Ellis will support
putting two permanent Sheriff's Office Taxing Districts on the
November 2008 ballot. The current dollar figure being kicked around is
between $2.50 and $3.00 per thousand for affected property owners, but
that number is subject to change in either direction. It is unclear if
that dollar amount would include money for the District Attorney's Office
or for Juvenile Shelter and Detention.

6) Commissioners
Toler and Ellis have both indicated they will also be putting a permanent
Taxing (Fire) District on the November, 2008 ballot. The last number I
heard for this Tax Rate was over $3.00 per thousand dollars value on real
property.

7) Even
with all these new taxes, the County will be hard pressed to continue
to operate the remaining Program services with current revenues and there
will still be no money to reopen the Library System. If the Sheriff's
Taxing Districts don't include funding for the District Attorney's Office
or Juvenile Shelter and Detention, then new money will be needed for those
services also.

Given
recent current decisions by my fellow commissioners, I would not be surprised
to see "other revenue" measures (new tax proposals) placed before the
voters on an ongoing, ever increasing manner in the years ahead.

The
Recent U.S. Supreme Court Decision

In December
I attended the Annual Meeting of all the Commissioners from the 18 O&C
Counties of Oregon, held in Eugene. There I was re-elected to the Board
of Directors of the Association of O&C Counties by vote of my fellow statewide
Commissioners.

While
that was important to me and to Josephine County because it assures our
strong representation in the Association, there was another, overwhelmingly
important event that occurred at that meeting.

Kevin
Davis, the Attorney for the Association of O&C Counties briefed everyone
on a vitally important United States Supreme Court Decision that was handed
down on June 25, 2007. Kevin explained that this decision had slipped
under everyone's radar until recently. It represents a breathtakingly,
refreshing change in direction for everyone in this country who believes
in the rule of Law and the fair and accurate enforcement of those Laws.

The
Case decided on June 25th was the:

National
Association of Homebuilders v. Defenders of Wildlife

Using
primarily Kevin's own words, here is a summary of the positive implications
of this decision for the O&C Counties.

Background:

Clean Water Act
requires Environmental Protection Agency (EPA) to transfer discharge
permitting program authority to a State if that State satisfies nine
criteria.

Arizona applied
for said transfer and satisfied the nine criteria.

EPA consulted
with Fish and Wildlife Service (FWS) under Section 7 (a)(2) of
the Endangered Species Act (ESA), and FWS offered a "no Jeopardy"
decision and the EPA prepared to grant the transfer.

Defenders of Wildlife
sought review of the EPA decision to transfer permitting authority to
Arizona.

Section 7 (a)(2)
of the Endangered Species Act says, "Agencies shall consult with the
USF&W and the NMFS to "insure" that agency actions will not jeopardize
listed species, or adversely modify designated critical habitat."

Relevant
Issue in this case:

Does the ESA "trump"
prior, conflicting statutes?

Homebuilders
is a major change in how the Law, under Section 7 (a)(2) of the
Endangered Species Act, is applied. Quoted below, in part, is what the
U.S. Supreme Court decisions says:

"Section
7 (a)(2)'s no-jeopardy duty covers only discretionary agency actions and
does not attach to actions….that an agency is required by statute
to undertake once certain specific triggering events have occurred.
This reading is not only reasonable, inasmuch as it give effect to ESA's
provision, but it also comports with the canon against implied repeals
[of conflicting legislation] because it stays Section 7 (a)(2)'s mandate
where it would override otherwise mandatory statutory duties."

In
other words:

If an earlier
statute tells an agency to do something, Section 7 (a)(2) does not modify
that mandate.

An agency is only
allowed to use its discretionary authority to avoid jeopardy.

EPA did not need
to consult with FWS, because FWS had no authority to add conditions
(R&P alternatives) designed to avoid jeopardy that might result.

The
O&C Counties expectations have changed because the Law has changed:

The Ninth Circuit
Court of Appeals ruled in Headwaters v BLM , 914.F.2d at 1183 that the
BLM lacks the discretion to create wildlife reserves. This new decision
confirms the Appeals Court decision which said in part:

"Exempting
certain timber resources from harvesting to serve as wildlife habitat
is inconsistent with the principle of sustained yield."

"Nowhere
does the legislative history suggest that wildlife habitat conservation
or conservation of old growth is a goal on par with timber production,
or indeed that it is a goal of the O&C Act at all."

The Ninth Circuit
Court of Appeals went on to clarify that the purposes of the O&C Act
were twofold:

"First,
the O&C Act was intended to provide the counties with a stream of
revenue which had been promised but not delivered…because the lands
in question were not managed so as to provide a significant revenue
stream; the O&C Act sought to change this."

"Second,
the O&C Act intended to halt the practice of clearcutting without
reforestation, which was leading to depletion of forest resources."

Now
what?

LSMA's in the
BLM's Western Oregon Plan Revision Alternatives 1 and 2 would not be
managed for sustained yield as required by the O&C Act.

Josephine
County had already commented on the WOPR, informing BLM we believed
these areas should be managed for sustained yield instead of being
set aside as reserves.

LSMA's can
no longer be justified as necessary to comply with Section 7 (a)(2
of the ESA. The same applies to LSR's under the NWFP.

The BLM must
apply sustained yield management within the areas currently proposed
for designation as LSMA's.

Whatever final
management plan that is implemented for the O&C Lands, it must be in
compliance with the mandates of the O&C Act of 1937, without exceeding
the discretionary limits defined by the purposes of the that Act.

This
changes everything.

The
U.S. Supreme Court has ruled that the simple language of an existing law,
including the O&C Act, are not and cannot be repealed by another law by
"implied repeal."

To review
the power point presentation from Kevin Davis, attorney for the Association
of O&C Counties contact me by email. My email address is: jraffenburg@co.josephine.or.us

The
O&C Counties have always maintained the "O&C Act" trumped the limiting
language of the "Endangered Species Act" (and several other environmental
laws which have been used as excuses to halt timber harvests over the
past twenty years). We are extremely grateful the United States Supreme
Court has now ruled that indeed the O&C Acts mandatory language trumps
the limiting language of the "Endangered Species Act."

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But
this is not a time to sit back and believe we're finished, because we
will never be finished. Rights must be defended constantly by those who
cherish them.

The
Environmentalist Industry will still sue to stop future harvests, but
they have lost the legal basis to prevail and they can no longer claim
the law is on their side.

Yet,
a local Environmentalist Industry leader has been quoted recently in the
news as saying they (the Environmentalist Industry) must still act to
"protect us from ourselves."

Those
who believe they have to "protect us from ourselves" are the worse
type of elitists, who think their views of the "common good"
and their need for control, trump our natural Rights and the clear
language of our national, state and local Laws.

As I
have said in the past, you cannot negotiate with people who will not negotiate
in good faith. The Environmentalist Industry is entirely committed to
the concept of no more harvesting of commercially viable timber from anywhere
on federal lands.

That
commitment has become their "meal ticket," their "gravy train" for donations
from well meaning (and not-so well meaning) people and interests from
around the world. They cannot afford to compromise their hard line commitment,
because it would expose the underlying, basic unreasonableness of their
entire Industry's arguments and seriously jeopardize their meal ticket.

My principles
and position as your Commissioner requires me to be clear and open about
how I see the events that are shaping the future of our County. That is
why I have no choice but to speak out on these issues.

The
current revenue crisis facing all of us can be dealt with one of two ways:
1) We can all support the return to reasonable use of our O&C timber lands,
which would provide timber revenues instead of Safety-Nets money.
2) We can all vote to double or triple our tax burdens.

It
really comes down to cutting timber or raising taxes.

Which
ever way we go, I still believe we must further reduce the size, complexity
and cost of County government. If the timber revenues return, that does
not mean we have to spend it all like we did in the past. If taxes end
up being the only alternative (to shutting down county government) then
we owe it to ourselves to be sure we have no more government than we can
all afford to paid for with local money. That will require significant
changes in the shape and operations of the existing county government,
and that will be painful, for everyone.

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One
final word of caution. Don't be mislead by radical Environmentalist
Industry propaganda that is already misleading people about a "return"
to the days of unchecked clear-cutting of every tree in the Pacific Northwest.
The Western Oregon Plan Revision, the new management plan of the BLM,
would not create vast clear-cut areas. It would in fact protect vast areas
from anything other than commercial thinning, to reduce fire dangers and
promote good forest health.

Commissioner
Jim Raffenburg is serving in his first term as Josephine County Commissioner
(Oregon). He was elected in November, 2004. He is married and lives with
his wife in the North Valley area. Jim served eight years as either Chair
or Vice-Chair of the Josephine County Rural Planning Commission and served
two years as a Josephine County reserve Deputy Sheriff. He is a trained,
Court mediator. Previous work experience is in both the private and public
sectors. He has worked in heavy, commercial construction and construction
management most of his life, including serving as Construction Administrator
for NASA.

These
decisions, taken one at a time, are bad enough, but taken as a collective
package, they are a prelude to disaster. For all practical matters, the
Board majority has abandoned the very concept of fiscal restraint.